ORDER
G.A. Brahma Deva, Member (J)
1. This appeal arises out of and is directed against Order-in-Appeal dated 13.1.98 passed by the Commissioner (Appeals), Chandigarh.
2. Arguing for the assessee Shri J.R Kaushik, submitted that issue relates to refund claim. Refund claim has been rejected by both the authorities below that refund claim was barred by time. He submitted that both the authorities of the view that refund claim should be filed within 6 months from the date of payment of duty on monthly returns were made. In the instant case the party has filed refund claim within 6 months from the date of finalisation of provisional assessment. Accordingly refund claim is not barred by time as it was held by the Tribunal in several cases. Further, he said that issue with reference to unjust enrichment has not been examined. He also submitted that in the similar facts and circumstances in the very appellants’ case the matter has already been remanded to the adjudicating authority to examine the issue with reference to the unjust enrichment as per Order No. A/2084/00-NB (SM) dated 31.10.2000 in Appeal E72250/99-NB (SM).
3. On the other hand Mr. RK. Jain, appearing for the Revenue submitted that issue with regards to the unjust enrichment has also been considered by the adjudicating authority. He drew our attention to the relevant portion, wherein the party has admitted that their rates were inclusive of excise duty and CST. Shri J.R Kaushik referred to the order portion of the Commissioner (Appeals) wherein the party has specifically taken the plea that the Department insisted upon the payment of duty disallowing the deduction of duty element from the contracted price and they suffered the differential duty paid on the contracted price. The question of passing on the incidence of duty at the rate of higher than the contracted price does not arise. In spite of the specific plea taken by the assessee the issue has not been dealt with by the Commissioner (Appeals).
We have carefully considered the matter and on going through the submissions made by both sides and following the order referred to by the assessee we are of the view that the matter will have to go back for re-consideration with reference to the unjust enrichment. Accordingly, the concerned adjudicating authority is directed to decide the issue with reference to the unjust enrichment and to pass an order in accordance with law on, providing an opportunity of personal hearing to the party. Thus, this appeal disposed of in the above terms.